Terms of Reference

Review of Commonwealth Laws for Consistency with Traditional Rights, Freedoms and Privileges

I, Senator the Hon George Brandis QC, Attorney-General of Australia, having regard to the rights, freedoms and privileges recognised by the common law,

REFER to the Australian Law Reform Commission (ALRC) for inquiry and report pursuant to section 20(1) of the Australian Law Reform Commission Act 1996 (Cth):

  • the identification of Commonwealth laws that encroach upon traditional rights, freedoms and privileges; and

  • a critical examination of those laws to determine whether the encroachment upon those traditional rights, freedoms and privileges is appropriately justified.

For the purpose of the inquiry ‘laws that encroach upon traditional rights, freedoms and privileges’ are to be understood as laws that:

  • reverse or shift the burden of proof;

  • deny procedural fairness to persons affected by the exercise of public power;

  • exclude the right to claim the privilege against self-incrimination;

  • abrogate client legal privilege;

  • apply strict or absolute liability to all physical elements of a criminal offence;

  • interfere with freedom of speech;

  • interfere with freedom of religion;

  • interfere with vested property rights;

  • interfere with freedom of association;

  • interfere with freedom of movement;

  • disregard common law protection of personal reputation;

  • authorise the commission of a tort;

  • inappropriately delegate legislative power to the Executive;

  • give executive immunities a wide application;

  • retrospectively change legal rights and obligations;

  • create offences with retrospective application;

  • alter criminal law practices based on the principle of a fair trial;

  • permit an appeal from an acquittal;

  • restrict access to the courts; and

  • interfere with any other similar legal right, freedom or privilege.

Scope of the reference

In undertaking this reference, the ALRC should include consideration of Commonwealth laws in the areas of, but not limited to:

  • commercial and corporate regulation;

  • environmental regulation; and

  • workplace relations.

In considering what, if any, changes to Commonwealth law should be made, the ALRC should consider:

  • how laws are drafted, implemented and operate in practice; and

  • any safeguards provided in the laws, such as rights of review or other accountability mechanisms.

In conducting this inquiry, the ALRC should also have regard to other inquiries and reviews that it considers relevant.


In undertaking this reference, the ALRC should identify and consult relevant stakeholders, including relevant Commonwealth departments and agencies, the Australian Human Rights Commission, and key non-government stakeholders.


The Commission is to provide its interim report by December 2014 and its final report by December 2015.